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April 10, 2013

Last week, the New Supreme Court handed down a decision that ruled that there was no legal basis for discrimination against breeds of dogs.

The ruling came in case New York vs Shanks. In the case, Diana Shanks was walking her 'pit bull' named Ghost on a leash, and on a harness. As she walked by the home of Ana-Marie Blasetti, Blasetti's German Shepherd rushed out and attacked Ghost. Ghost responded by protecting himself, and his owner, and fought back and unfortunately killed the larger German Shepherd.

Blasetti filed a complaint against Ghost, and the Town Court of the Town of Oneonta determined that Ghost was a dangerous dog -- even though the defnition of a dangerous dog was one that attacked "without justification". The courts however ruled that Ghost was dangerous in part because he was a 'pit bull'.

The Supreme Court overturned the local ruling. The Supreme Court noted that Ghost was indeed restrained throughout the entire attack and that having been attacked by the larger German Shepherd, his reaction was very well justified. Further the Supreme Court noted:

"The condemnation of an individual dog in the context of a dangers dog proceeding solely by virtue of its breed is without any legal basis. We have repeatedly held that 'there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type of breed of domestic animal."

The precent for the lack of targeting specific breeds of dogs remains firmly in tact in New York and the poor woman who was simply out walking her dog which was attacked by another dog was wisely found to be not-guilty.

June 15, 2012

I've been meaning to cover the situation in Maryland for awhile -- but, because of some other stuff going on I just haven't gotten to it. But here's the latest -- and some background for those who haven't been keeping up (and it's been a LOT to keep up with).

Back on April 26, the Maryland Court of Appeals issued a ruling that essentially states that pit bulls, and their mixes, are presumed dangerous by the nature of their breed (or type). The ruling provides a whole host of problems for owners of pit bull type dogs -- including problems getting insurance and if their dog is involved in a bite incident, further liability than other dog owners in similar situations because their dog is a presumed risk (whether they've demonstrated bad behavior befor or not). This has been particularly problematic for renters and landlords as they even transferred the burden on landlords that they were also liable if they knew there was a 'pit bull' on their rental property.

The court decision has been opposed by nearly everyone, including The Washington Humane Society, rescue organization Presidential Pits, B-More Dog,the Maryland SPCA, Second Hope Rescue, Baltimore Humane Society, Humane Society of the United States and Best Friends has also created an action alert (and many other orgs have expressed interest in repealing this) Immediately after the decision came out Senate President Thomas Miller Jr. and House Speaker Michael Busch announced a joint legislative task force to study the Court opinion. Apparently the new laws being filed are a result of the task force.

The court ruling was made in conjunction with a 2007 attack of a boy by a dog in Towson, MD. According to the courts, the fact the dog was a "pit bull" was prima facie evidence that the dog's owners should have KNOWN the dog was aggressive -- and thus, were more liable for negligence than had the bite happened by any other type of dog.

The ruling (no kidding), used as one of it's proof points, an 1882 dog bite case that involved a Newfoundland dog that was involved in an attack. The court, in 1882, ruled that "the fact that the owner kept his dog tied and did not permit him to run at large, it MUST BE PRESUMED that he had konwledge that the dog was vicious, unruly and not safe...." Or may I suggest that in 1882 the dog was in a rural community and the dog was a working dog, used to protect the flock in the evenings while the owner was asleep. Just a guess.

Either way, the court then argued that they could then make many of the same presumptions in this case -- and through a series of presumptions, ruled that all 'pit bulls' are inherently aggressive.

The ruling was a 5-4 decision -- so a close one and four of the nine judges didn't agree. And I think the further "logic" of the court case is summed up excellently by the dissenting opinion. Here's an exerpt (emphasis mine):

"By the virtue of this new rule, grounded ultimately upon the perceptions of the majority of this court about a particular breed of dog, rather than upon adjudicated facts showing that the responsible party possessed the requisite knowledge of the animal's incliantion to do harm, the majority transforms a clear factual question into a legal one in an effort to create liability. If the majority believes that it has not transformed the relevant inquiry from a factual determination into a legal one, in the present case, then I pose this question: "What expert testimony or factual predicate is contate within this record to support a factual finding that pit bulls and mixed-breed pit bulls are inherently dangerous? I have considered the record and foudn no such factual predicate."

This should give you a pretty good feel for the decision -- and why the legislature has jumped on adding a law that specifically overides the court decision on its agenda for the summer emergency session.

Best of luck to all the folks who are working hard to overturn this decision. It isn't a good judgement -- and I suspect that with the continued work of advocates in the area that Maryland will become yet another state that will outlaw breed-specific laws.

January 08, 2012

Not a complete wrap-up this week (especially on the blog front), but there have been several interesting stories the past couple of weeks that I want to discuss a bit. Several probably deserve their own post, but for now, I want to get them out there.

Cities/States and Laws

The Ohio Senate Judiciary Committee will be holding a public hearing on Tuesday, January 10 at 3:15 on HB 14 -- the law that would repeal Ohio's statewide breed specific law.

An appellate court in Texas made a ruling that dogs are "More than property". Prior to this ruling, damages for wrongful death for dogs assigned the value of the dogs as only the dog's monetary worth (similar to furniture)-- however, the new ruling allows owners to be entitled to "sentimental or intrinsic" value. I think this is a landmark decision that has elevated the dogs beyond just property value -- but not taken them out of the the role of property to protect them from search and seizure laws.

No Kill

The Olathe, KS Animal Shelter has an awesome "Home for Christmas" program. Essentially the program is designed to have fosters take all of the animals home so they can spend Christmas in the home. While that's a great idea, the results are even better. Of the 15 dogs that were sent into holiday foster homes, only 2 came back to the shelter as their foster families decided to keep them. Of the eight cats, 5 stayed permanently. In 2010, 20 of the 22 dogs and cats stayed in their homes. What an awesome way to begin the new year with an almost entirely empty shelter.

An anonymous California donor has given Detroit Dog Rescue $1.5 million toward building the first No Kill shelter in Detroit.

Really?

Thecity of Harrisburg, PA used to contract animal housing with the Humane Society of Harrisburg Area, Inc but because of financial concerns, they had to cancel the contract. So now, without a shelter to take animals to, the police department has issued an official memo to their officers that if they now have three options when responding to a dog complaint: Kill it, adopt it, or dump it. The memo also notes that officers may "destroy" animals at their discretion. Local advocates are rightfully noting that the memo basically advocates for abuse or animal abandonment and that officers who follow it should be charged. Yowser.

In Wichita, a dog owner surrendered her healthy, young Labrador Retriever, Lucy,to the Kansas Humane Society because Lucy suffered from separation anxiety and was destructive when left alone . Before she could bring herself to drive away, she had second thoughts, and went back to get Lucy. However, the shelter had already killed the dog when she got there. So within 10 minutes, a healthy happy young dog that exhibited dog-like behavior was killed by a "Humane Society" that should exist to protect it. The shelter of course defended its decision. Christie then asks if Scruffy's law could have saved Lucy?

UK Dangerous Dogs Act

In 1991 the UK passed a law banning four breeds of dogs from the country -- however, in spite of the law (and perhaps, because of it), dog attacks requiring hospitalization in the UK have nearly doubled over the past decade and now, new reports of breeders wanting to create aggressive dogs have started crossbreeding various large guarding breeds to create "super breeds". Now, the sensational rhetoric in the article is out of control (and the type of thing that caused the ban in the first place), but it doesn't point to the reality that if someone wants an aggressive dog, they will find a way to create one around a breed-specific law. The UK Dangerous Dog Law has been a failure by almost any account -- and Lord Redesdale's Dog Control Bill has passed the House of Lords and will overhaul the Dangerous Dogs Act which would dramatically improve the situatoin in the UK. More great info on this at Stop BSL.

Earlier this month, the Miami Marlins signed left handed pitcher Mark Buehrle from the Chicago White Sox. But Buehrle and his family won't be moving to Miami -- because his 18 month old family pet Slater isn't welcome in Miami because of the county's pit bull ban. So Buerhle and his $14 million a year salary took his family and his money to Broward County to buy a home. Buehrle and his wife have been strong animal welfare advocates in Chicago for years and no doubt will continue to be vocal voices in the South Florida area as well.

Last spring, Dave DeWolfe and his family found themselves homeless after a devastating tornado wiped out large parts of the city of Joplin and their home was destroyed. In a frantic effort to find a new home, they bought a home in nearby Carl Junction - -however, found out a few months later that their dogs, an American Pit Bull Terrier and a Rottweiler, were both banned in Carl Junction -- so once again they are on the move looking for a place to live. Way to be warm and receptive Carl Junction.

December 28, 2011

Last week, I noted a story about James Sak, and his dog Snickers. You can find more details here, but the jist of the story is that Sak is a disabled veteran of the Vietnam War and a retired Chicago police officer. Sak suffered a stroke, and has had some disabling after-effects of the stroke. To help him cope with the effects, a physical therapist recommended a service dog for Sak.

In November, Sak, his wife Peggy, and his dog, Snickers, moved to Aurelia, IA to care for Peggy's eldery mother.

About a month into their stay, city authorities confiscated Snickers, because they said owning him was a violation of the community's breed ban -- that bans pit bulls, like Snickers. And even though the city was aware of a recent Department of Justice clarification that SPECIFICALLY mentions that breed bans do not trump the American's with Disabilities Act's allowances for service dogs, the city stuck to it's guns.

And, in what comes as a surprise to almost no one (except, apparently local officials in Aurelia), US District Judge Mark Bennett ruled that the city was in violation of the ADA, and Snickers could return home.

Yay.

Bennett noted that the city hadn't shown sufficiently shown that Aurelia would suffer "sustainable harm" by Snickers if he was allowed to return home, but that Sak would suffer "sustainable harm" without Snickers.

While this is great news for Snickers and Saks, it also highlights yet another problem with Breed Bans.

The idea behind breed banning is simple: the idea is that there is something genetically "different" with different types of dogs that make them unsafe to be in communities. However, dogs like Snickers, Leo, and thousands of others continue to show that most of these dogs are not only not "naturally aggressive", but actually very beneficial in their therapy and service work.

Once the realization is made (and it HAS to be made at some point when cities have to allow sweet, gentle pit bulls as service dogs), then they HAVE to acknowledge that not all dogs of a particular breed are aggressive.

One that realization is grasped, then the idea of a ban on all dogs of a certain breed is by its very definition an over-inclusive form of legislation -- and thus, not only unconstitutional, but irrational. Especially when a different and more effective form of legislation exists that focuses on the actual behavior of each dog -- and only impacts dogs (and owners that show themselves to be an actual threat to society.

But for now, thankfully Snickers is heading home. And although the city says it may appeal to the state supreme court (because, apparently money grows on trees in Aurelia), I fully expect this court decision to stand -- further bringing to light the irrational nature of breed bans.

December 23, 2011

Last week, 65 year old James Sak, a disabled Vietnam Veteran and retired Chicago police officer, was forced to relinquish his service dog after the Town Council in Aurelia, IA, voted to prohibit the dog from living with him because the dog was a 'pit bull' and banned from the city limits.

Sak and his wife Peggy had just moved to Aurelia in November to live closer to Peggy's 87 year old mother because her health was failing.

Sak's dog, Snickers, of course came with them. Snickers is a service dog certified with the National Service Animal Registry. In 2008, Sak suffered a stroke that left him permanently disabled and unable to use the right side of his body and left him confined to a wheel chair. Sak sent 2 years working with a physical therapist to improve his functional capacities -- which included his getting Snickers who was specifically trained to help hiim with his disability (including helping him walk).

However, a small group of residents (really, what type of jerks are THESE people?) circulated a petition calling for Sak's service dog to be removed under the city's breed ban -- even though the dog has no history of aggression or nuissance complaints. And in an amazingly stupid move, the council agreed to do it.

Because he had no other options, Sak has been forced to pusue legal action agains the city of Aurelia -- in what is being called a "landmark case" for the Americans with Disabilities Act.

Eighteen months ago, the Department of Justice released its "Final Rule" on the Americans w/ Disabilities Act. The DOJ clarified that breed restrictions were not welcome under the ADA. You can read the entire section on breeds here, but here are a few highlights:

The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA....

Breed restrictions differ significantly from jurisdiction to jurisdiction. Some jurisdictions have no breed restrictions. Others have restrictions that, while well-meaning, have the unintended effect of screening out the very breeds of dogs that have successfully served as service animals for decades without the history of the type of unprovoked aggression or attacks that would pose a threat....

State and local government entities have the ability to determine, on a case by case basis, whether a particular service animal can be excluded based on that particular animal's actual behavior or history -- not based on fears or generalizations about how an animal or breed might behave.

In spite of this, George Wittgraf, an attorneyrepresenting the city of Aurelia, stands by the city's law noting the city is "simply exercising its authority to protect and preserve the rights and property of its residents -- whether or not that's trumped by" federal law.

Um, good luck with that. I'm no lawyer, but this seems like a slam dunk case for Sak and Snickers.

Meanwhile, the whole case continues to being a flashing neon sign highlighting the ridiculousness of breed-specific laws. The law in his case is clearly targeting a dog and its owner that are not a problem, and a dog that is not aggressive. While the city spends the time targeting Mr. Sak, and the money to defend their "right" to do so, they are pulling resources away from dealing with aggressive animals in the community - -ie, animals that have actually acted aggressively.

Meanwhile, they have helped create an uneducated small group of ignorant people who think that its a dog's breed that makes it aggressive, regardless of the behavior of the dog. And in the process, taken aim at a new resident of the community who spent his entire life serving and protecting other people.

It's idiotic. And when you see false hysteria created in a situation like this it even further highlights that breed specific legislation isn't a fact-based idea -- it's one based on the powerful emotion of fear. Let's get back to the facts shall we? And focus on behavior, not breeds.

Special tip-of-the-hat to Animal Farm Foundation for their ability to help Mr. Sak -- and for providing a wealth of information about the case.

Meanwhile,Criscuolo was then forced to register his other dog as a "hazardous" dog under the city law. As such, the complaint challenges the law based on the subjective nature of the law based purely on subjective visual assessment, and the reality that the restraints required by the law are based on "perceived, imprecise, methodologically deficient and unpublicized visual identification". Also, allowing for animals to be seized under these impricise judgments is a violation of due process.

Among the federal claims, the suit claims that the breed specific law violates the Fourth, Fifth and Fourteenth Amendments (seizure, due process, vagueness, overbreadth, underbreath and equal protection).

Moses Lake enacted the law as an act of Panic Policy Making after a dog bite that occurred in 2008. You can get the full lowdown on how the law was passed from Pit Bulletin Legal News. After suffering the costs from the lawsuit, and realizing the inappropriateness of the law, the city has now backed away from the law and repealed it in its entirety.

Congrats to the city of Moses Lake for realizing their mistake -- and to Mr. Criscuolo for forcing change upon the city (although, I'm very sorry to hear about your dog being killed).

March 30, 2011

The city of Lakewood, OH is facing a legal complaint regarding the city's Breed Restrictions.

The case is Tarquinio v City of Lakewood; and alleges that Chapter 506 of the Lakewood City Ordinance is unconstitutional because it violates due process and vague. The suit also alleges that the ordinance violates Home Rule doctrine of the Ohio Constitution. Lakewood's law allows the Director of Public Safety to make a pit bull classification "with or without a hearing."

Lakewood, like many cities, is already suffering from significant budget problems -- so more lawsuits are even more problematic for the city and their taxpayers -- especially in supporting a law based on a failed premise (not to mention the constant harrassment of innocent dog owners).

Lakewood becomes yet another shining example of the failures of laws that declare dogs dangerous based on their shape vs based on their actual behavior...and why all taxpayers pay when such laws are passed.

The State Supreme Court decision then defers back to lower court rulings which had previously ruled that the ban violated state law.

So the ban in Midwest City, OK is now, officially gone.

This suit was initially filed in 2007. So for nearly four years, Midwest City has been tying up city and state taxpayer dollars trying to defend their clearly illegal breed ban.

Meanwhile, it should be noted, that the dogs in question had never shown signs of aggression -- but were only presumed to be aggressive based on breed stereotype.

Dollars, and time, wasted; defending a law based on fear-mongering rather than rational thought.

Good for Jerry Stuckey -- who gets to keep his dogs and remain in his home - -and finally the lingering lawsuit is out from over him. Meanwhile, shame on Midwest City for wasting taxpayer dollars on a failed ordinance.

January 07, 2011

This isn't exactly a new story. In fact,I started discussing this all the way back in 2009, but there is some more information I want to pass along as there have been several recent cases against Miami-Dade and the constitutionality of how the enforce their 20 year old pit bull ban.

In March, 2010, Circuit Court in Miami-Dade county ruled in the case of Cardelle v Miami-Dade County Code Enforcement that the manner in which Miami-Dade's Breed Ban was enforced was ruled to violate Constitutional rights of due process. You can read the entire case ruling here -- with a hat tip to Dangeerous Dog Law for posting the actual case.

Now, before I dive into the specifics of the case, I want to be clear. The case does not say that Miami-Dade's ban is in violation of the law -- but it does say that how they are enforcing the law is in violation of due process -- and the case potentially sets a precedent that may make enforcement of BSL even more costly for cities around the country.

The ruling found that there were violations in due process in three different areas :

1) Even though the prosecuting officer, officer Casadevell, offered a fairly solid amount of 'expertise" in animal control, the judge ruled that he could not be considered an 'expert' in 'pit bull' identification. According to previous US Supreme Court rulings, a series of criteria must be available before someone can be considered an 'expert', including testing, peer review, potential error rates and general acceptance in a relevant community. However, because there are no error rates, statistics or objective standards for comparison, the court found that the county applies only "subjective criteria and there is little or no peer review."

It was noted that Casadevall, the officer who declared the dog in question to be a 'pit bull', had 15 years of experience and had ID'd roughly 1,000 dogs -- and that that did make him an expert. But the court disagreed.

"Officer Casadevall freely admited that he merely performs the inspections and does nothing to gather data, perform quality control and validate existing data. He offered nothing in the way of error checking and peer reviews of his work...there are no procedures in place to verify his findings and validate his previous opinions as to whether he correctly identified pit bulls, the mere quantity of his inspections does not render his opinion reliable." (Emphasis mine)

The court noted that in other field-work type cases that there is a scientific way to determine an officer's level of expertise. In marajuana cases, a lab test can confirm whether or not an officer was right in his assertion that something is marajuana, and in field sobriety checks, science can verify actual sobriety to determine the accuracy of the tests.

Nothing like this exists in the realm of deterimining whether or not a dog is a 'pit bull'.

2) The second area of violation of due process centers around the hearing officer demonstrating bias toward Officer Casadevall's testimony based on the preconceived belief that officers are credible. I won't talk much about this, but it seems to tie into the above rationale that the officer isn't really an 'expert' in pit bull identification, and thus, his opinion shouldn't be waited above the opinions of others.

3) The third area of due process violation was that the hearing officer apparently made numerous comments that he was inclined to find the dog to be a 'pit bull' based on his fears that the dog would eventually hurt someone. In doing so, the "officer relied on an impermissile factor - fear of future harm." Prior court rulings note that a court cannot rule someone guilty over the fear that they may cause future harm (which is very Minority Report-esque). This one makes me question whether the whole idea of breed bans - banning something based on the fear of future harm -- isn't in question...but that isn't really addressed in this case.

I think the big win here is that it seems very clear from this ruling (which was ruled 4-1 with one dissenting opinion) is that it sets a precedent that an animal control officer, even an experienced one, cannot be instantly given the title of "pit bull identification expert" without any science, proof or peer review behind it because it then allows for too much subjectivity in the way of determining guilt. Overcoming this barrier of "the dog is a pit bull because I say it is" will be extremely costly for most cities to overcome in the future.

Would love to get the thoughts of some of the lawyers in the room (who would be more knowledgable than I am about how to interpret and apply this ruling).

July 29, 2010

Earlier this week, in honor of the 20th anniversary of the signing of the Americans With Disabilities Act (ADA) the Department of Justice released its"Final rule" on enforcement of the law.

It's a lengthy document -- and I confess to not having had time to read the whole thing due to my travel schedule, but the ruling does take aim at targeting service dogs based on the breed or type of dogs being used. Here is the text from that section (emphasis is mine):

Breed Limitations.A few commenters suggested that certain breeds of dogs should not be allowed to be used as service animals. Some suggested that the Department should defer to local laws restricting the breeds of dogs that individuals who reside in a community may own. Other commenters opposed breed restrictions, stating that the breed of a dog does not determine its propensity for aggression and that aggressive and non-aggressive dogs exist in all breeds.

The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA who use certain service animals based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others. Breed restrictions differ significantly from jurisdiction to jurisdiction. Some jurisdictions have no breed restrictions. Others have restrictions that, while well-meaning, have the unintended effect of screening out the very breeds of dogs that have successfully served as service animals for decades without a history of the type of unprovoked aggression or attacks that would pose a direct threat, e.g., German Shepherds. Other jurisdictions prohibit animals over a certain weight, thereby restricting breeds without invoking an express breed ban. In addition, deference to breed restrictions contained in local laws would have the unacceptable consequence of restricting travel by an individual with a disability who uses a breed that is acceptable and poses no safety hazards in the individual´s home jurisdiction but is nonetheless banned by other jurisdictions. State and local government entities have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal´s actual behavior or history--not based on fears or generalizations about how an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health and safety."

It makes it very clear in their ruling that breed discrimination of service dogs should not be tolerated. And the service dog issue has become a very important one recently as dogs are proving to have a very positive effect on helping people deal with certain social issues -- particularly around post traumatic stress.

This is obviously devastating news for the cities of Denver and Aurora, Colorado. Both cities are currently facing lawsuits in which three separate individuals are claiming to have their rights violated under the ADA in these cities because their service dogs are of breed types banned in these jurisdictions. Denver has already spent over $15,000 in legal defense to help them prepare for the case -- although with the recent DOJ ruling, it seems impossible that they could win the case.

Breed bans continue to be very problematic for cities because they target exactly the wrong thing - a dog's shape, not its behavior. The ruling makes it very clear that this should be the way issues surround dogs should be handled: on an individual basis not based on very broad (and inaccurate) generalizations).